Bloomberg Soda Ban Struck Down by New York State Supreme Court

With only a day to go before Mayor Michael Bloomberg’s ban on oversized "sugary drinks" went into effect, State Supreme Court Justice Milton A. Tingling has laid down the gavel. Concerned over the "virtually limitless authority" that such precedent would set, Justice Tingling hoped the ruling would avoid the creation of an "administrative Leviathan."

The decision, of course, was not an easy one. The notoriety of sugary drinks that are consumed from receptacles exceeding the liquid capacity of sixteen fluid ounces is well-documented indeed. Yet the Court, showing itself to embody the height of proper jurisprudence and judicial restraint, has seen to it that the so-called "Portion Cap Rule" will not go into effect.

Much of the Court’s concern stemmed from what was described as the "arbitrary" and "capricious" application of the rule. For example, the ban would not include grocery stores or convenience stores that do not serve prepared food. The ban would also be circumvented by companies like Starbucks because it is not applied to drinks that "are at least 50% milk, such as lattes and cappuccinos — or even milkshakes."

Such vague administrative patchwork put too much power in the hands of the NYC Board of Health.

"The Rule," Justice Tingling explained, "would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages."

A bold declaration. But while it may seem silly to use such serious language over a ban on "sugary drinks," we should not take the decision lightly.

It is always easy to cede one’s liberty when the policy seems reasonable. Very few people would argue that the consumption of giant fountain sodas is among the "noble and good" activities in life. But we would also do well to remember that every policy sets a precedent, and what seems reasonable today might make for troubling laws in the future.

Thus, when Justice Tingling talks about "sweeping and unbridled authority to define, create, authorize, mandate, and enforce" a given health code, we should not think of it in terms of a soda ban — but in terms of what the precedent could become.

Unfortunately, the Bloomberg administration’s chief counsel, Michael Cardozo, has announced that the decision will be appealed. Their justification comes from a belief that "the Board of Health has the legal authority — and responsibility — to tackle the causes of obesity."

So Bloomberg’s soda ban will live to fight another day. With Justice Tingling’s stinging decision, however, it is hard to see how it can be upheld in good conscience.